Gun Shows Under Attack By David Kopel

When you see people buying and selling firearms at a gun show, does it make your blood boil? Do you feel disgusted to see so many people exercising their Second Amendment rights at once? If so, then you`re a prime target for Handgun Control, Inc.`s (HCI) latest assault on the American gun culture.

The campaign is proceeding on several fronts. HCI`s mailings to its activists urge them to start frightening their communities about the (alleged) terrible dangers of local gun shows. Likewise, the Violence Policy Center--an extremist splinter group in the gun prohibition movement, which claims that HCI is too moderate--is using grants from anti-gun foundations to distribute its "report" asserting that gun shows are "Tupperware parties" for criminals.

In Florida, the anti-gun lobby attacked gun shows as part of a campaign to convince the state`s voters to cut the state`s constitutional protection for the right to keep and bear arms to permit cities and counties to pass severe anti-gun laws, and Florida voters fell for it. And nationally, Chicago Congressman Rod Blagojevich (D-IL) is pushing H.R. 3833 to impose massive new federal controls on gun shows. Not surprisingly, ignorant anti-gun media folks have turned themselves into mouthpieces for the newest anti-gun propaganda campaign.

At the gun show, the licensed dealer is subject to exactly the same legal requirements as when he is conducting business out of his storefront.

And on November 7, 1998, President Clinton announced he is giving the Treasury and Justice Departments 60 days to recommend actions that the administration can take to "close the gun show loophole"--starting with proposing legislation. Quick to commend Clinton`s anti-gun agenda, HCI`s Sarah Brady joined in the following day, further urging an end to gun show sales across the nation.

The indictment of gun shows is as follows: Guns shows are a major source of criminal guns, a place where people deal firearms without a license, and a place where people buy illegal "assault weapons." Because gun shows are a "loophole" in the federal gun laws, gun shows allowed Timothy McVeigh and David Koresh to arm themselves. In truth, every one of the charges against gun shows is false.

According to Rep. Blagojevich, the Illinois state police found that 25% of criminal guns came from gun shows. According to Denver Congresswoman Diana DeGette (D-CO), an enthusiastic co-sponsor of the Blagojevich anti-gun bill, 70% of criminal guns come from gun shows. The true figure is rather different, according to the National Institute of Justice (NIJ), the research arm of the U.S. Department of Justice.

The NIJ`s "Drug Use Forecasting" program collects data about all kinds of criminal arrests (not just drug arrests). According to an NIJ study released in December 1997, only 2% of criminal guns came from gun shows. About a quarter of criminal guns came from retail firearms stores, and the rest came from sources such as theft and black market purchases. This result is consistent with a mid-1980s study for the NIJ, investigating the gun purchase and use habits of convicted felons in 12 state prisons. The study found that gun shows were such a minor part of criminal gun acquisition that they were not even worth reporting as a separate figure.

The 2% figure for gun shows (and the 25% figure for gun stores) does not mean that the criminal necessarily purchased the gun himself at that location. Many persons with criminal records use a "straw man" purchaser--someone with a clean record who buys the gun, and then transfers it to the criminal.

("Straw man" purchases have been classified a federal felony since the Gun Control Act of 1968; the federal law against straw purchases was strengthened in 1986 by the NRA-sponsored Firearms Owners Protection Act.) Do gun dealers at gun shows evade federal laws? No. And if once in a while there is a violation, there are already ample federal laws to warrant prosecution.

Ever since 1938, persons engaged in the business of selling firearms have been required to obtain a federal firearms license. Those who are not engaged in the business, but who sell firearms from time to time (like a man who sells a spare hunting rifle to his brother-in-law), are not required to obtain this license.

The physical location of the sale does not affect its legal status under federal law. Many storefront gun dealers set up tables at weekend gun shows since the show may have more foot traffic in a weekend than a small store does in a whole month. (The main reason for the growth in gun shows in the last decade and a half is that the Firearm Owners Protection Act provided for licensed firearms dealers to conduct business at gun shows in addition to selling from their storefronts.) If you walk the aisles at a gun show, you will find that the overwhelming majority of tables are owned by licensed firearms dealers. If you buy a gun from one of those tables, you will go through the same paperwork (the federal form 4473) and the same background check (once the Brady handgun check, but now the NRA-backed "instant check" on both handguns and long guns) as if you bought the gun at the dealer`s storefront. If a person is not engaged in the business of selling guns, he may sell firearms without a federal license. For example, if a gun collector dies and his widow does not want to maintain the collection, she is entitled to sell it. Even if the collection were large (say, for the sake of argument, 50 guns), her sale of the guns would not require a federal firearms license since she is just selling off inherited property and is not "engaged in the business." Once the sale is over, she will not continue buying and selling firearms.

The gun prohibitionists and politicians such as Charles Schumer are outraged that a law-abiding citizen can buy a firearm at a gun show without going through the federal background check?if the firearm is purchased from the minority of tables that do not have an FFL. But non-FFL gun collectors are not currently required to perform federal background checks regardless of whether a gun is sold at a show or from a collector`s home.

The same law would apply to an active gun collector. If a collector has a 40-gun collection, and over the course of the year sells three guns from his collection and buys six new guns, he does not need a federal firearms license. Though he buys and sells guns, he is not engaged in the business of selling them.

Suppose that the widow doesn`t want to sell her deceased husband`s guns by taking out a classified ad in the newspaper, preferring to sell the entire collection in a single weekend. She could purchase a table at a gun show and sell them there. Since she is not engaged in the business, she does not need a federal license. The location of the sale does not change the legal requirements that apply.

Likewise, the law applicable to the active gun collector does not change if he does his trading at a gun show. He can rent a table, display his entire 40-gun collection, and during a weekend, buy one gun and sell another. Whether he sells the single gun from his home, or at the gun show, the law does not change. Because he is not in the business, he does not need a federal license. Therefore, someone who buys a gun from him does not need to comply with federal laws, such as filing the 4473 form and the Brady Act paperwork, which apply only to sales by licensed dealers.

Now, suppose that someone claiming to be a collector is actually operating a firearms business. He rents a table at a gun show 50 weekends a year, and sells 20 guns each weekend. Selling firearms at the rate of 1,000 per year, and conducting a business week after week, he appears to be engaged in the business of selling firearms. If this man does not have a federal firearms license, then he is guilty of a federal felony.

According to anti-gunners, gun shows are a major source of criminal guns, a place where people deal firearms without a license, and a place where people buy illegal "assault weapons." Everyone of these charges is false.

Indeed, every separate gun sale constitutes a separate federal felony. (The federal laws are section 922 and 923 of volume 18 of the U.S. Code.)

What about the folks in the middle who rent gun show tables on many weekends but sell at a far lower volume than the hypothetical 20-gun-per-weekend dealer? Federal law does not specify any particular number or rate of firearms sold as a threshold for being engaged in the business. This is a sensible rule as the widow selling 50 guns in one weekend is, despite her high volume, not in the business. So for any given situation, the determination of whether a person is engaged in a business is based on common-sense. In case of a dispute, the issue would be resolved by a jury, after taking all of the facts into account.

Now the majority of people who sell guns at gun shows, and who are not federally licensed dealers, are neither widows nor high-volume dealers operating illegally. Rather, they are people who used to be licensed federal gun dealers, selling a few guns a year to their friends, from a home-based business. These folks were known as "kitchen-table dealers," as opposed to "stocking gun dealers," who sell from a storefront.

The Bureau of Alcohol, Tobacco and Firearms (BATF) acknowledged that these kitchen table dealers were not a problem; they sold only a few guns per year to people whom they personally knew to be good citizens. But BATF claimed that the need to perform inspections of the kitchen table dealers kept BATF inspection agents so busy that they did not have enough time to do repeat inspections of stocking gun dealers. So starting in 1993, BATF began a program to drive the kitchen table dealers out of business. Threats from BATF agents, deliberate bureaucratic delays and other forms of harassment not only convinced most kitchen table dealers to cease operations, but also caused many small-scale stocking gun dealers to surrender or not renew their licenses.

Some of these low-volume ex-licensees sell firearms at gun shows. Since BATF took away their licenses under the claim that the licensees were not selling enough guns to be engaged in the business, it would hardly be fair to claim that these people are violating federal law by not having a license.

In short, gun shows are no "loophole" in the federal laws. If a person is required by federal law to have a federal firearms license, then the requirement applies whether or not the person sells at a gun show. And if a person is not required to have a license, then the person`s presence at a gun show does not change the law.

The gun prohibition folks express outrage that a person can buy a firearm at a gun show without going through the federal background check, though this is only the case when the purchase is made from the minority of tables that do not have an FFL. However, even if the non-FFL gun collector sold his gun from his home rather than from a gun show, a federal background check still would not be required.

American gun shows have always provided excellent opportunities for firearms enthusiasts to expand their knowledge. While many dealers offer a variety of guns for sale at shows, others prefer simply to share their knowledge and bring their collections to these events for display purpose only.

Why should the location of the sale determine whether a background investigation will be required?

The real point of complaining about non-FFL private transactions at gun shows is to begin the campaign to outlaw all private firearms sales. If it should be illegal for a widow to sell a gun without a background check at a gun show, then it should also be illegal for her to sell the same gun through a classified ad, and it should likewise be illegal for her to sell the gun to her neighbor.

In California, HCI has achieved its objective of outlawing all private gun sales. In California, you can`t sell a .22 squirrel rifle to your cousin. Instead, you must route the transaction through a licensed gun dealer, pay a fee for a background check, undergo a two-week waiting period, and have your sale registered by the California Department of Justice.

Attacking gun shows is the first step to abolishing all privacy regarding firearms, en route to implementing universal gun registration. And the step after that? New York City, England, and Australia have already used gun registration lists to confiscate long guns. They are following the strategy enunciated by HCI founder and President Nelson "Pete" Shields, who explained in 1976:

"The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition--except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors--totally illegal." (Richard Harris, "A Reporter at Large: Handguns," New Yorker, July 26, 1976, p. 58.)

Besides forming a foundation for gun confiscation, abolishing private gun sales eliminates privacy in the exercise of constitutional rights. The government has no more legitimate authority to compile a list of every rifle or handgun purchase than it does to compile a list of everyone who buys "subversive" books or birth control devices.

What about the other charges against gun shows, like illegal "assault weapon" sales? In fact, the 1994 Clinton "assault weapon" law bans the future manufacture of certain firearms based on cosmetic characteristics, such as whether the gun has a bayonet lug (as if criminals were conducting bayonet charges against convenience stores). The law imposes no controls on the pre-1994 supply of so-called "assault weapons." It is perfectly legal to own, buy, and sell these pre-1994 guns. It is legal for a licensed federal dealer to sell such guns from his store, or at a gun shows; and it is just as lawful for a private individual to sell such guns. (A few states have more restrictive laws.)

Thus, the people who claim that gun shows facilitate illegal sales of so-called "assault weapons" are either lying or demonstrating that they are so ignorant of existing law that their opinion is worthless advice about making new laws.

Faced with the factual collapse of the campaign against gun shows, the anti-gunners often retreat to their two favorite characters: Timothy McVeigh and David Koresh, and claim that gun shows were responsible for their crimes.

Some people who don`t like guns can`t stand the idea of so many gun owners in one place, buying and selling their wicked products. It`s how some communists feel when they visit the New York Stock Exchange.

Here`s the truth: McVeigh stole guns from an Arkansas gun store. He sold those stolen guns, as well as racist literature, at gun shows. Representative Blagojevich`s bill wouldn`t have done anything to stop McVeigh. While it would have imposed a federal background check on McVeigh`s customers, the customers weren`t the criminals; McVeigh was.

This bill would also require anyone who puts on a gun show to obtain a federal license. (Currently, no license is needed, since those who rent tables at the gun shows are conducting firearms sales; the promoter rents out space, but does not sell guns.) The licensing requirement could come in handy a few years down the road if an anti-gun administration decides to shut down gun shows entirely.

David Koresh`s Branch Davidian organization often rented a table at gun shows, where they sold novelty items, such as empty grenade hulls and ready-to-eat meals (army-type survival foods). One of Koresh`s devotees, Paul Fatta, was a licensed firearms dealer who sold firearms at gun shows in full compliance with federal laws. The major source of the Branch Davidian arsenal came from purchases through another licensed firearms dealer: Hewitt Handguns. Purchased in full compliance with federal laws, these guns were registered by the dealer on the 4473 forms, which were made available to BATF agents when they began the investigation of Koresh.

The federal firearms crimes which Koresh and his group allegedly committed--illegal manufacture of machine guns and explosives without registration--were conducted entirely in private. Gun shows had nothing to do with them.

The assault on gun shows isn`t very sensible as a matter of crime control, but then very little in the anti-gun arsenal is. Rather, the campaign against gun shows is, like most of the rest of the anti-gun agenda, an exercise in moral imperialism. Some people who don`t like guns can`t stand the idea of so many gun owners in one place, buying and selling their wicked products. It`s how some communists feel when they visit the New York Stock Exchange.

As always, the anti-gun agenda is cloaked in a mantle of public safety and reasonableness. Underneath, it`s the same old effort to constrict the right to keep and bear arms bit by bit, until the Second Amendment right of the people has been replaced by a small privilege granted to a select few.

Reprinted from The American Guardian January 1999

Dave Kopel is an adjunct professor of law at New York University School of Law, and Research Director of the Independence Institute, a free-market think tank, http://i2i.org.

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